Madan Kukreja, New Delhi V. DCIT, New Delhi

ITA 2478/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9605 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 25-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K HAUTHANG
• Assessee Lawyers: R S AHUJA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES E: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA.NO.2478/DEL./2017 ASSESSMENT YEAR 2011-2012 SHRI MADAN KUKREJA, C-59, FRIENDS COLONY EAST, NEW DELHI. PAN AAJPK2206R VS., THE DCIT, CENTRAL CIRCLE-17, NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI R.S. AHUJA, C.A. FOR REVENUE : SHRI K. HAUTHANG, SR. D.R. DATE OF HEARING : 25 .0 9 .2019 DATE OF PRONOUNCEMENT : 01 . 1 0.2019 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-35, NEW DELHI, DATED 23.02.2017 FOR THE A.Y. 2011-2012 ON THE FOLLOWING GROUNDS: 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN NOT AFFORDING REASONABLE OPPORTUNITY TO ASSESSEE. 2 ITA.NO.2478/DEL./2017 SHRI MADAN KUKREJA, NEW DELHI. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) ERRED IN CONFIRMING THE AD HOC ADDITION MADE BY LEARNED A.O. AS UNDISCLOSED INCOME OF RS.1,87,76,223/-. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) ERRED IN CONFIRMING THE ORDER OF THE LEARNED A.O. IN HOLDING THAT FURTHER IN VIEW OF STATEMENT OF ASSESSEE MADE U/S 132(4), JEWELLERY, SILVER, CASH FOUND UNDISCLOSED DURING THE COURSE OF SEARCH ARE BEING CONSIDERED IN THE HANDS OF ASSESSEE BEING COVERED IN THE SURRENDER MADE FOR THE CURRENT YEAR, AND THEN PROCEEDING TO MAKE AN ADDITION OF RS. 1,87,76,223/-. 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE'; THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY LEARNED A.O. OF RS.1,87,76,223/-, WITHOUT BRINGING ON RECORD ANY EVIDENCE OF ANY UNEXPLAINED ITEM, OR ANY SOURCE OF INCOME. 3 ITA.NO.2478/DEL./2017 SHRI MADAN KUKREJA, NEW DELHI. 5. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF LEARNED A.O. IN NOT CONSIDERING THE INVESTMENT MADE IN C 59, FRIENDS COLONY EAST, NEW DELHI AS PART OF THE SURRENDER U/S 132(4) IN THE HANDS OF ASSESSEE. AND AGAIN MAKING A SEPARATE ADDITION IN THE HANDS OF ASSESSEES SPOUSE, BABLI KUKREJA OF RS.1,58,61,166/-. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. 3. IN THIS CASE A.O. MADE CERTAIN ADDITIONS WHICH WERE CHALLENGED BEFORE THE LD. CIT(A). THE LD. CIT(A) FIXED APPEAL FOR HEARING ON MANY DATES. ALMOST ON EACH DATE OF HEARING, THE COUNSEL FOR ASSESSEE SOUGHT ADJOURNMENT OR ON CERTAIN DATES NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD. CIT(A) ON THE BASIS OF NON-APPEARANCE ON THE SIDE OF THE ASSESSEE, BASED ON FACTS ON RECORD, DECIDED THE APPEAL OF ASSESSEE EX-PARTE AND DISMISSED THE APPEAL OF ASSESSEE. 4 ITA.NO.2478/DEL./2017 SHRI MADAN KUKREJA, NEW DELHI. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT(A) WAS HAVING DUAL CHARGES. THE ASSESSEE HAS BEEN ATTENDING THE PROCEEDINGS BEFORE THE LD. CIT(A). HOWEVER, ON THE LAST DATE OF HEARING, DUE TO CONFUSION OF HAVING TWO CHARGES BY LD. CIT(A), THERE WERE NON-APPEARANCE. HE HAS PRODUCED SEVERAL DOCUMENTS IN THE PAPER BOOK TO SHOW THAT ALL THE ADDITIONS ARE WHOLLY UNJUSTIFIED. LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT LD. CIT(A) HAS NOT DECIDED THE ISSUE ON MERITS AND MERELY IN THE ABSENCE OF ASSESSEE DISMISSED THE APPEAL OF ASSESSEE. HE HAS, THEREFORE, PRAYED THAT MATTER MAY BE REMANDED TO LD. CIT(A) FOR FRESH CONSIDERATION ON MERITS. 5. THE LD. D.R. HAS NO OBJECTION IF THE MATTER IS REMANDED TO THE FILE OF LD. CIT(A) FOR FRESH CONSIDERATION ON MERITS. 6. CONSIDERING THE ABOVE DISCUSSION, IT IS CLEAR THAT ASSESSEE HAS NOT BEEN AFFORDED REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD. FURTHER, THOUGH THE LD. CIT(A) PASSED EX-PARTE ORDER DISMISSING THE APPEAL OF ASSESSEE, BUT, NO REASONS FOR DECISION AS REQUIRED UNDER SECTION 5 ITA.NO.2478/DEL./2017 SHRI MADAN KUKREJA, NEW DELHI. 250(6) OF THE I.T. ACT HAVE BEEN MENTIONED. LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO SEVERAL DOCUMENTS IN THE PAPER BOOK WHICH PRIMA FACIE SHOW THAT ASSESSEE MAY HAVE SOME CASE ON MERIT WHICH ARE REQUIRED TO BE LOOKED INTO BY THE LD. CIT(A). IN THIS VIEW OF THE MATTER AND CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, WE ARE OF THE VIEW THAT ONE MORE CHANCE SHOULD BE GIVEN TO THE ASSESSEE TO ARGUE THE APPEAL ON MERITS BEFORE THE LD. CIT(A). IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THE APPEAL OF ASSESSEE TO HIS FILE WITH A DIRECTION TO RE-DECIDE THE APPEAL OF ASSESSEE STRICTLY ON MERITS AS PER LAW, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 01 ST OCTOBER, 2019 VBP/- 6 ITA.NO.2478/DEL./2017 SHRI MADAN KUKREJA, NEW DELHI. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT E BENCH 6. GUARD FILE // BY ORDER // ASST. REGISTRAR : ITAT DELHI BENCHES : DELHI.